WASHINGTON – The Southern Baptist Convention’s religious freedom entity has joined the legal battle against the Obama administration’s abortion/contraception mandate in the first case to reach a federal appeals court.

The Ethics & Religious Liberty Commission (ERLC) signed on to a friend-of-the-court brief filed Oct. 12 that asked a federal appeals court to reverse the dismissal of two lawsuits against the controversial requirement under the 2010 health care law. The brief supports challenges by Wheaton College, an evangelical Christian school in suburban Chicago, and Belmont Abbey College, a Roman Catholic institution in North Carolina, to the mandate that employers provide workers with health insurance that covers contraceptives and abortion-causing drugs.

The ERLC – and 10 other evangelical organizations – joined by invitation in a brief filed by Christian Legal Society (CLS) in support of the colleges’ appeal on religious liberty grounds to the District of Columbia Circuit Court of Appeals. More than 35 suits have been brought against the mandate, but the D.C. Circuit is the first appeals court to consider such a challenge. Oral arguments will not be held until after the final briefs are filed in mid-November.

C-SPAN photo

President Obama and HHS Secretary Kathleen Sebelius, at a Feb. 10 news conference, set forth modified HHS regulations on “Preventive Health Services and Religious Institutions” which have since failed to alleviate First Amendment religious freedom concerns -– and lawsuits.

Though resistance to the mandate has been portrayed widely as Catholic in nature, ERLC President Richard Land said the case demonstrates the opposition is much more diverse than one religious body.

“This particular case is vitally important both because of the nature of the appeal concerning a very narrow definition the government is following for religious employers and secondly because of who is involved in the suit,” Land said Monday (Oct. 15). “One of the most prestigious evangelical colleges in the world in Wheaton College – of which Billy Graham is a graduate -– is one of the participants in the suit, which demonstrates this is not ‘just’ a Catholic issue, but it is an issue of religious freedom across the board for all people of faith – Protestant, Catholic and otherwise.”

The ERLC is not the first Southern Baptist institution to join the court fight. Three Baptist schools – Louisiana College, Houston Baptist University and East Texas Baptist University – have filed lawsuits against the mandate. Federal courts have yet to rule in those challenges.

The lawsuits seek the overturn of a rule by the Department of Health and Human Services (HHS) that includes – in coverage paid for by employers – drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions. Among such drugs are Plan B and other “morning-after” pills, which can prevent implantation of tiny embryos, and “ella,” which – in a similar fashion to the abortion drug RU 486 – can act even after implantation to end the life of the child.

The CLS brief endorsed by the ERLC says the HHS mandate fails to protect religious liberty, arguing the rule’s definition of “religious employer” is too narrow and departs from the country’s tradition. The ERLC and other critics of the mandate’s religious exemption have decried it as inadequate since a final rule was issued in January. The religious exemption in the rule is insufficient to protect religious hospitals, schools and social service ministries as well as some churches, critics have pointed out.

The mandate’s definition of “religious employer” is narrower than a standing definition under federal law and violates both the establishment of religion and religious free-exercise clauses in the First Amendment, according to the brief. The brief also says the mandate defies the 1993 Religious Freedom Restoration Act which bars the federal government from burdening religious free exercise unless it has a “compelling interest” and uses “the least restrictive means” in advancing that interest.

“Forcing religious employers to fund contraceptives and abortion-inducing drugs is hardly the least restrictive means of achieving the government’s purported interests,” according to the brief. “This is a solution in search of a problem. No one seriously disputes that contraceptives are widely available.”

The mandate also contradicts longstanding conscience protections in the abortion arena, the brief says. Since the same year the Roe v. Wade decision legalized abortion (1973), Congress has protected the conscience rights of health care workers and institutions that objected to participating in abortions or sterilization, according to the brief. Congress also has banned most federal funding of abortion.

Though the 2010 health care law says it is not to affect conscience protections regarding the performance of or funding for abortion, the HHS mandate “tramples religious employers’ conscience rights and thereby discredits the time-honored commitment to respect religious conscience rights in the health care context,” the brief says.

The mandate’s heavily criticized exemption for a church or church-like body covers a nonprofit that: (1) Has the “inculcation of religious values” as its purpose; (2) primarily employs people who agree with its religious beliefs; (3) largely serves people “who share [its] religious tenets” and (4) is “a church, an integrated auxiliary of a church, a convention or association of churches, or is an exclusively religious activity of a religious order,” according to the Internal Revenue Code.

Many congregations “would deem it a violation of their core religious beliefs to refuse help” to those who have different religious beliefs, according to the brief.

“The government seems bent on casting the narrowest net possible, in order to protect the fewest religious employers possible,” the brief says. “In so doing, the government penalizes religious congregations for helping society’s vulnerable without regard to their religious beliefs.”

In September, the D.C. Circuit consolidated the Wheaton and Belmont Abbey cases and expedited their appeal after federal courts ruled the lawsuits were premature.

The abortion/contraception mandate went into effect Aug. 1, but the Obama administration expanded its one-year “safe-harbor” from that date for religious objectors to include all nonprofit religious entities. The Becket Fund for Religious Liberty, which represents both Wheaton and Belmont Abbey, told the D.C. Circuit the schools already are suffering harm.

“The safe harbor’s protection is illusory,” Becket Fund General Counsel Kyle Duncan said after filing the appeal. “Even though the government won’t make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care.”

In addition to the ERLC, others signing onto the CLS brief included the Christian Medical Association, Prison Fellowship, National Association of Evangelicals, Patrick Henry College, Association of Gospel Rescue Missions, Association of Christian Schools International and Institutional Religious Freedom Alliance.

Other friend-of-the-court briefs also were filed on behalf of Wheaton and Belmont Abbey Oct. 12, including those by:

Six pro-life medical organizations, including the American Association of Pro-life Obstetricians and Gynecologists as well as the Association of American Physicians and Surgeons.

American Center for Law and Justice and Regent University in Virginia Beach, Va.

Catholic University of America, as well as the archbishop and Catholic Charities, both of the Washington, D.C., archdiocese.

Eagle Forum.

Organizations have been filing legal challenges to the HHS mandate seemingly weekly. Among others suing the federal government are Hobby Lobby, Christian publisher Tyndale House, Colorado Christian University, Geneva College, Priests for Life and the EWTN Catholic television and radio network.

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